STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO.:GG 430275-RT
                                          :  
          BARBARA DAVY                       RENT ADMINISTRATOR'S
        (TENANT REPRESENTATIVE)              DOCKET NO.:EB 430215-OM
                            PETITIONER    : 
      ------------------------------------X                             

                  ORDER AND OPINION REMANDING PROCEEDING ON APPEAL

      On July 28, 1992 the above-named petitioner-tenants filed an administrative 
      appeal against an order issued on July 6, 1992 by the Rent Administrator 
      (Gertz Plaza, Jamaica, New York) concerning the housing accommodations 
      known as 101 Saint Mark's Place, New York, New York, various apartments, 
      wherein the Administrator granted a major capital improvement (MCI) rent 
      increase for the controlled and stabilized apartments in the subject 
      premises based on the installation of a boiler/burner at the premises.

      The landlord commenced the proceeding below by filing its MCI application 
      in February 1990.

      In response to the application, several tenants filed answers in July 1990 
      stating that the boiler broke down constantly and did not provide adequate 
      heat and hot water for the building.  Furthermore, the tenants filed a 
      Statement of Complaint of a Decrease in Building-Wide Services in June 1990 
      alleging a lack of heat and hot water.

      In response to the tenants' objections, the owner contended, in substance, 
      that the heating and hot water problem that resulted from the new 
      boiler/burner installation had been rectified and that the tenants' 
      complaints were no longer valid.

      The subject premises was physically inspected on June 23 and 24, 1992 
      wherein the inspector discovered that the hot water service was adequate.

      On July 6, 1992, the Rent Administrator issued the order here under review, 
      finding that the boiler/burner installation qualified as an MCI, 
      determining that the application complied with the relevant laws and 
      regulations based upon the supporting documentation submitted by the owner, 
      and allowing rent increases for the rent controlled and rent stabilized 
      tenants.

      On appeal, the tenants contend, in substance, that they continue to 
      experience problems with the boiler/burner as the heat and hot water 
      service remains inadequate; an inspector should visit the building during 
      the heating season to inspect the boiler operation; they filed a building- 
      wide decrease in service complaint in June 1990, but have not been 
      contacted to date by DHCR about their complaint; they requested a boiler 









          ADMINI. REVIEW DOCKET NO.: GG 430275-RT


      inspection from the Department of Buildings in June 1990, but have not been 
      contacted to date concerning their request; they also requested an 
      inspection from the Department of Code Enforcement in April 1991, but have 
      not been contacted to date concerning their request; and regular heat and 
      hot water complaints are on file with the New York City Central Complaint 
      Bureau.  In support of their petition, the tenants have submitted several 
      New York City Department of Housing Preservation and Development (HPD) 
      Inspection Reports (previously submitted in the proceeding below) several 
      "Heat Sheet" complaint logs, a letter from the tenants to the Department of 
      Buildings dated June 27, 1990, a letter from the tenants to the Department 
      of Code Enforcement dated April 14, 1991, and several HPD certificates of 
      inspection visits.

      The owner did not submit an answer to the tenants' petition.

      After a careful consideration of the entire evidence of record the 
      Commissioner is of the opinion that this proceeding must be remanded for 
      further processing.

      The record discloses that the owner substantiated its application by the 
      submission of various supporting documentation, including the contract, 
      contractor's certification, cancelled checks and requisite government sign- 
      offs for the boiler/burner installation.  Unfortunately, the subject 
      building was inspected in June 1992 when the heat was not on.  Since the 
      tenants' contention that the boiler/burner does not provide adequate heat 
      and the existence of "immediately hazardous" conditions were never properly 
      addressed by the Administrator, the Commissioner deems it necessary to 
      remand this proceeding for such further processing as may be deemed 
      necessary which may include, among other things, a physical inspection of 
      the subject premises during the winter months to ascertain whether the 
      boiler/burner is providing adequate heating service to the tenants.

      The Commissioner notes that the tenants filed a building-wide service 
      diminution complaint on July 30, 1990 under Docket Number EG 430018-B which 
      alleged, inter alia, a lack of heat and hot water service.  This complaint 
      is still pending a determination.

      THEREFORE, in accordance with the applicable provisions of the Rent 
      Stabilization Law and Code, the Rent and Eviction Regulations for the City 
      of New York, and Operational Bulletin 84-1, it is

      ORDERED, that the administrative appeal be, and the same hereby is granted 
      to the extent of remanding this proceeding to the Rent Administrator for 
      further processing in accordance with this order and opinion.  The 
      automatic stay of so much of the Rent Administrator's order as directed a 
      retroactive rent increase is hereby continued until a new order is issued 
      upon remand.  However, the Administrator's determination as to a 
      prospective rent increase is not stayed and shall remain in effect until 
      the Administrator issues a new order upon remand.

      ISSUED:
                                                                    
                                           JOSEPH A. D'AGOSTA
                                           Deputy Commissioner



                                                    
    

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